Appellate Court Holds the Wisconsin Counties Association Not Subject to Public Records Law

The Wisconsin Counties Association (WCA)  is an unincorporated not-for-profit association of that State’s counties.  The Wisconsin Professional Police Association submitted two requests for records to the WCA under the Wisconsin Public Records Law.  Wisconsin courts previously recognized that under a ”totality of the circumstances” test an entity may be a quasi-governmental organization that resembles a governmental corporation and  subject to the Public Records Law.  That holding even applied to a private corporation.  This is similar to the Washington court’s holding in Clarke v. Tri-Cities Animal Care and Control Shelter, 1444 Wn. App. 185 (2008).  There, the court applied the 4-part under Telford v. Board of Thurston County Board of Commissioners, 95 Wn. App. 149, review denied, 138 Wn.2d 1015 (1999).  In the recent Wisconsin decision (September 18, 2014), the court applied a restrictive standard in rejecting the application of the Public Records Law to the WAC.  The court relied on the fact that the WAC was an association and not a corporation.  The court found that the Wisconsin legislation said “corporation,” and that is what the Legislature meant.  This distinction will not likely apply in Washington, where the public disclosure laws broadly defines “agency.”  See RCW 42.17A.005 (campaign finance) and RCW 42.56.010 (Public Records Act).  And, Washington courts will apply a “functional equivalent” test to determine whether an entity should be subject to the Washington Public Records Act.  The elements of that test are: (1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government.

Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses - Is The Air Clearing?

In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year.  See Laws of 2005, ch. 483, § 5; former RCW 42.17.410.  Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.”  RCW 42.56.550(6).  Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency.  This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished).  There, the court held that the one-year statute of limitations barred all of the requestor’s claims. 

Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010).  In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.”  Id. at 514 (quoting RCW 42.56.080).  Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply. 

Division II disagreed with Tobin.  Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011).  After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.”  Id at 777.  The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event. 

In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue.  Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit.  Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.”  Id. at 537.  Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records.  The court declined to follow a literal reading of the statute because doing so would lead to absurd results.  Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in BartzSee 177 Wn.2d 1024 (2013).

With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions.  One of the plaintiff’s public records requests in  Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed.  The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period.  The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents.  Opinion at 14-15; see also id. at 18.  Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed.  Id. at 15. 

Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550.  At minimum, it raises doubt as to the continuing precedential value of Tobin.  The court cited Tobin as contrary authority in a footnote, but did not elaborate further.  Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin.  At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed.  Those deadlines are November 17 and 26, respectively. 

 

Recent PRA Litigation Missteps: Abandoned Claims, False Starts

By Milt Rowland and Lee Marchisio

Abandoned Claims.  In West v. Gregoire, Division II of the Court of Appeals held that a PRA requestor who moves for a show cause order under RCW 42.56.550(1) abandons any claims he or she does not either (1) address in briefing, (2) mention in oral argument, or (3) otherwise specifically preserve for judicial review.  Arthur West submitted a public records request to Governor Gregoire’s office.  After providing West an initial five‑day letter, the Governor’s office did not further communicate for several months.  And when it did, it asserted executive privilege (which was later upheld in Freedom Foundation v. Gregoire).  West sued, claiming that executive privilege should not be recognized in Washington. 

Some months later, West brought a show cause motion, but failed to mention in the motion or at oral argument his other PRA claims (notably, his claim that the Governor’s initial delay in production was unreasonable).  Citing the detailed show cause procedures under RCW 42.56.550(1) and the public policies in favor of judicial economy and against piecemeal litigation, the court held that a .550(1) show cause hearing can function as a PRA claimant’s trial.  Any PRA issue not mentioned or otherwise expressly preserved in a .550(1) show cause motion is abandoned, just like any civil claimant’s allegation not mentioned in the pleadings, not raised in response to a summary judgment motion, or unsupported at trial, is deemed abandoned. 

A PRA claimant does not have to proceed by a .550(1) show cause motion, however, and can instead proceed to trial under the Civil Rules.  But if the party does file a show cause motion, it must either assert every PRA issue on that motion or otherwise preserve the issue expressly.  If not, the issue is abandoned.

False Starts.  In Hobbs v. Washington State Auditor’s Office, also before Division II, the Court of Appeals held that a records requestor may initiate a lawsuit under the PRA only after it reasonably appears that the agency will not provide records responsive to the request.  Here, the requestor sought “a large amount of technical information” related to an Auditor’s whistleblower investigation.  The Auditor’s five‑day letter indicated that the office would provide records in installments.  Two days after the Auditor provided the first installment, the requestor sued for alleged PRA violations.  In the meantime, the Auditor’s office continued to search for and produce responsive records in rolling installments, including by correcting errors in its initial productions.  Eventually, the Auditor’s office produced all responsive documents and cured all alleged violations. 

Because the suit was filed during an open request that was eventually fulfilled in compliance with the PRA, the Court held that the Auditor’s office did not improperly withhold records.  The Court also held that an agency does not violate the PRA if it makes every reasonable effort to comply with a PRA request and also fully cures alleged PRA violations while the request remains open.  Accordingly, the Auditor’s office did not violate the PRA by improperly disclosing certain documents in its initial installments because it later corrected those errors before closing out the request. 

In its final notable holding, the Court also made clear that the PRA does not require an agency to provide a reasonable estimate of the time it will take to fully respond to a request.  Instead, if an agency notifies the requestor that it will provide records on an installment basis, it need only provide in its five‑day response letter the agency’s reasonable estimate of the time it will take to produce the first installment.  

Case Law Update: "fullest assistance," redactions for effective law enforcement, disclosure of non-agency phone logs

The Washington Court of Appeals issued three notable Public Records Act decisions in the past few days.  In Andrews v. Washington State Patrol, Division III held that an agency that fails to comply with self‑imposed disclosure deadlines does not violate the PRA if the agency acts diligently to produce the requested records.  The specific records request was complex, seeking audio recordings of third‑party telephone conversations protected by attorney‑client privilege.  In order to preserve confidentiality, the State Patrol developed a method to identify responsive records from over six months of recordings without actually listening to the recorded conversations.  In the process, the State Patrol missed self‑imposed disclosure deadline estimates without notifying the requestor that it needed additional time to compile the records.  Facing 1,000 additional public records requests at the time, the Patrol ultimately disclosed the records in less than 90 days.  The Court held that the PRA’s requirement that agencies provide a “reasonable” estimated response date is not a requirement for an “exact” estimate and that the Patrol’s failure to meet its self‑imposed deadlines or to notify the requestor that additional time was needed did not violate the PRA’s “fullest assistance” provision. 

In Haines‑Marchel v. Department of Corrections, the requestor sought internal investigation documents from the Clallam Bay Corrections Center.  Relying on those documents, prison officials placed an inmate on “dry cell watch” in order to monitor the inmate for suspected contraband.  The documents detailed allegations by three separate named inmate informants.  Citing an exemption for sensitive information contained in law enforcement records, RCW 42.56.240(1), the Department released the documents but redacted the informants’ names and identifying numbers, the details of their allegations, and all information about their reliability as informants.  Division II of the Court of Appeals agreed with these redactions, holding that releasing this investigative record information would undermine effective law enforcement at correction centers.  Informants identified in the documents could be subject to retaliation and future informants would be “chilled” against providing information to Department officials.  Similarly, the Department properly redacted pre‑printed material in the documents because those materials detailed the Department’s methods of investigation.  Releasing this intelligence information would aid inmates in crafting and disguising false or deceptive accusations.  However, the Court also held that other information was improperly redacted.  The accused inmate’s name and assigned number, the specific rule he allegedly violated, and the investigating officer’s signature in the documents were not similarly exempt. 

Last week in Nissen v. Pierce County, Division II held that text messages sent and received from a government employee’s private cell phone are public records if they relate to government business.  Similarly, portions of call logs that track a government employee’s private, non‑agency cell phone could be public records for those calls that relate to government business.  The more difficult question was whether the agency “prepared, owned, used or retained” the phone logs.  Unlike the text messages, which were prepared and used by the employee as a government official, the cell phone logs were created by a private cellular provider and delivered to the employee in his private capacity.  Accordingly, the call logs might not be “used” or “retained” by the agency even though the phone itself was used for government purposes.  The Court remanded for the trial court to determine this question after developing the record.  Arguably, the Court avoided a fundamental issue that could have been resolved as a matter of law: “we do not reach the question of whether [the employee’s] personal cellular phone call logs became ‘public records’ when he delivered them to the prosecutor’s office for the agency to redact.”  

 

Recommended Reading: Ethics and the Public Disclosure Act

Foster Pepper's Regulatory & Government Affairs practice recommends reading, "Does Media Coverage of School Shootings Lead to More School Shootings?" to stay up-to-date on conversation related to the Public Disclosure Act. The Stranger originally published the article on August 11, 2014.

Court Of Appeals Holds Records Subject To Protective Order As Unduly Burdensome Not Exempt Under The Public Records Act

In Washington State Department of Transportation v. Mendoza de Sugiyama (Division II), a former employee brought an employment action against the Department of Transportation (“DOT”) and requested certain records in pretrial discovery.  When the trial court granted DOT’s motion for a CR 26(c) protective order on the grounds that the request was unduly burdensome, the former employee submitted a public records request to DOT for the same records.  DOT brought a separate action for declaratory and injunctive relief, arguing that the records were exempt under RCW 42.56.290 (the Public Records Act’s “controversy exemption”) because the records were “not available to a party under the rules of pretrial discovery.”

A divided panel of the court of appeals determined that the records were not exempt, holding that records subject to a CR 26(c) protective order on the grounds that they are unduly burdensome for an agency to produce are nonetheless “available” under the civil rules of pretrial discovery and therefore not exempt under the controversy exemption.  The majority observed that no privilege was involved and that the protective order was aimed at the scope of the discovery request, not the content of the material sought.  The majority found this distinction dispositive, and noted that the PRA specifically prohibits agencies from denying requests solely because they are overbroad.  RCW 42.56.080.  The majority concluded that a “more reasonable interpretation of the statutory language is that the legislature intended to exempt under the PRA only those records that would not be available to any party under universally applicable rules of discovery, rather than those records rendered conditionally unavailable to a specific litigant under the unique facts….” (emphasis in original).  It also found no conflict between the PRA and the superior court discovery process.

The dissent argued that a requestor “should not be allowed to use the PRA to thwart the court’s authority to manage litigation before it, especially when that authority is carried out in close conformance with the Civil Rules.”  Observing that the plain language of RCW 42.56.290 exempts material that is unavailable under the rules of pretrial discovery, one of which is CR 26(c) authorizing protective orders, the dissent would have held the records exempt from production.

Recommended Reading: Open Public Meetings Law

Foster Pepper’s Regulatory & Government Affairs practice recommends staying updated on state open public meetings law and reading the most recent development as reported by Justin Runquist of The Columbian. Washougal mayor: Council may have violated public meetings law. 

Names of Police Officers Involved in Shootings Subject to Disclosure in California

The Los Angeles Times requested that the City of Long Beach release names of police officers involved in shootings that occurred while the officers were on duty. The officers’ union sued the City to prevent disclosure, and the LA Times intervened in support of its request. Following earlier decisions in favor of the Times and disclosure, the California Supreme Court affirmed those earlier decisions. Long Beach Police Officers Ass’n v. City of Long Beach, 203 Cal.App.4th 292 (May 29, 2014). Finding that, while disclosure of officers’ names may not be warranted in every case, the Court’s balancing test in this case determined that the public’s interest in disclosure prevailed over vaguely worded assertions regarding officer safety or the safety of the officer’s family. The Court recognized the “general safety concerns of officers who fear retaliation from angry members of the community after an officer-involved shooting.” But the Court also concluded that the California Legislature had determined it important “for the public to know the identities of the officers serving the community.”

Former Public School Teacher Has No Privacy Right to District Investigation of Sexual Misconduct

In early 2012, The Spokesman-Review requested records from the Riverside School District relating to Allen Martin. Mr. Martin, when a teacher at the District, engaged in sexual conduct with a consenting adult in Martin’s classroom. As a result, the District did not renew his teacher’s contract. Mr. Martin filed a lawsuit to prevent the District’s disclosure in response to the Public Records Act request. On January 30, 2014, the Court of Appeals issued its Opinion upholding the disclosure of the District’s records. On March 18, 2014, the Court ordered that its decision be published

In Martin v. Riverside School District, the Court applied the recognized standard from Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199 (2008): “[W]hen a complaint regarding misconduct during the course of public employment is substantiated or results in some sort of discipline, an employee does not have a right to privacy in the complaint.” Martin contended that his relationship with a consenting adult was a matter concerning his private life and did not relate to public duties with the District. The court disagreed. Martin’s conduct was an inappropriate use of school facilities. The public had a legitimate interest in the disclosure of Martin’s identity and the District’s records relating to Martin’s conduct. The right to privacy applies when a complaint involves “unsubstantiated or false allegations” because such allegations concern matters involving private lives of public employees. Here, the allegations were substantiated and Martin had no right to privacy in that information.

When is a Committee Not a Committee Under the OPMA?

The Washington Open Public Meetings Act (OPMA), chapter 42.30 RCW, applies to a “governing body” as well as to a committee that “acts on behalf of” a governing body. The key definitions from the OPMA, at RCW 42.30.020, include as follows:

(1) “Public agency” means:

(a) Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature;

(b) Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington;

(c) Any sub agency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies. . . .

(2) “Governing body” means the multimember board, commission, committee, council, or other policy or rule making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

Under its plain terms, the OPMA applies to a meeting of a majority of a council or commission. What is less clear is whether the OPMA applies when less than a majority of a council or commission meets (e.g., the meetings of a 3 member committee of a 7 member council). The Washington Court of Appeals recently addressed this very issue in a case involving the 6 member San Juan County Council. Citizens Alliance for Property Rights v. San Juan County (April 28, 2014, unpublished). The Court considered a challenge, based on the OPMA, to San Juan County’s adoption of updates to its Shoreline Master Program and Critical Area ordinances. Central to the Court’s decision was the construction of the OPMA’s provisions regarding committees.

BACKGROUND

In 2010, the County began the update process to its Shoreline Master Program and Critical Area ordinances. Until early 2012, a County internal team, including three County Councilmembers and certain executive staff, met regularly to discuss the update. The team meetings were not open to the public. After the Prosecuting Attorney cautioned the team regarding the potential application of the OPMA, the Councilmembers discontinued the practice. Many months later, and following extensive public meetings, including over 30 meetings after the team meetings had ceased, the County adopted its Critical Area ordinances.

A citizens group challenged the ordinances, arguing that the County’s earlier team meetings with three of the Councilmembers constituted illegal meetings under the OPMA. The Court rejected that argument and held that the team was not a “committee” that constituted a “governing body” subject to the OPMA.

HEARINGS, TESTIMONY AND PUBLIC COMMENT

The OPMA applies to any “committee” of a governing body, regardless of the identity of the members (elected officials, staff, or members of the public). AGO 1986 No. 16. The more important question is whether the committee performs one or more of the functions identified by the OPMA to qualify that committee as a “governing body” subject to the OPMA.

In 1983, the Legislature amended the OPMA to clarify the application of the Act to certain committees of a governing body. Laws of 1983, chapter 155, § 1. Now, the OPMA applies to any committee of a governing body “when the committee (1) acts on behalf of the governing body, (2) conducts hearings, or (3) takes testimony or public comment.” RCW 42.30.020(2) (numbering added). Accordingly, any committee or subcommittee, even if composed solely of a minority of a commission or council or composed of nonmembers of a governing body (such as a task force or ad hoc working group), is subject to the OPMA if it conducts hearings or receives testimony or public comment. See Clark v. City of Lakewood, 253 F.3d 996 (9th Cir., 2001) (city planning advisory board’s task force to study adult entertainment regulation took testimony and violated the OPMA when a majority of its meetings were closed to public). The San Juan County team did not receive testimony or conduct hearings. So, that provision of the OPMA was not controlling.

ACTS ON BEHALF OF

A committee also qualifies as a “governing body” if it “acts on behalf of the governing body.” RCW 42.30.020(2). The citizens group argued that the County’s study team acted “on behalf of” of the County Council and was therefore subject to the OPMA’s open meetings requirement. The interpretation of the phrase “on behalf of” has been debated for many years. The Washington Attorney General evaluated alternative interpretations of the phrase in AGO 1986 No. 16. There, the Attorney General applied a narrower definition and concluded that “a committee acts on behalf of the governing body when it exercises actual or de facto decision making authority for the governing body.” Applying that construction, the Court held that the citizens group failed to produce evidence that the team (which included three County Councilmembers) exercised actual or de facto decision making authority for the full Council. That OPMA challenge was rejected.

NEGATIVE QUORUM?

In a matter of apparent first impression for Washington courts, the citizens group also argued that the three San Juan County Councilmembers constituted a “negative quorum” that could effectively block any legislation regarding the disputed issue. The citizens group cited State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 398 N.W.2d 154 (1987). There, the Wisconsin Supreme Court held that Wisconsin’s Open Meeting Law applied because four of eleven members of a governing body could block a budget ordinance. In the case of San Juan County, the three County Councilmembers could also prevent the passage of legislation. The Washington Court of Appeals declined to follow Showers, however, and applied earlier Washington court decisions that required the presence of a majority of members before there was a “governing body” subject to the OPMA. See In re Recall of Beasley, 128 Wn.2d 419, 427, 27 P.3d 878 (1996) (in recall action, no meeting of majority of school board); In re Recall of Robert, 115 Wn.2d 551, 554, 799 P.2d 734 (1990) (in recall action, no meeting of majority of town councilmembers).

CAUTION

The San Juan County decision is unpublished. While it provides guidance, it is not yet controlling authority. As a result, councils and commissions should be cautious about the application of the OPMA to committees, task forces and other groups that include council members or commissioners. For additional guidance, see the extensive library of OPMA materials on the MRSC website.